Confronting the Myth of Choice:

Homelessness and Jones v. City of Los Angeles

Tanene Allison

In Jones v. City of Los Angeles,
1
the United States Court of Appeals for
the Ninth Circuit struck down Los Angeless vagrancy law as effectively crimi-
nalizing homelessness. This issue includes two scholarly pieces that address
this set of issuesAdil Haques Lawrence v. Texas and the Limits of the Criminal
Law,
2
and Sarah Gerrys Recent Development, Jones v. City of Los Angeles: A
Moral Response to One Citys Attempt to Criminalize, Rather than Confront,
the Problem of Homelessness.
3
In addition to these voices from the legal scholar-
ship community, we wanted to include the voice of someone who can speak to
the issues raised in Jones from a different perspectivea person who has ex-
perienced homelessness.
In my homeless shelter I was told not to read the newspaper in the
morning. I was also instructed not to initiate talk with the other shelter resi-
dents about politics or local homeless policy. It was the summer of 2001,
I had just turned twenty, and I was homeless in San Francisco.
The shelter sat in what is considered one of San Franciscos ghettos, the
Tenderloin, and was populated by up to forty men and women between the
ages of eighteen and twenty-four. We were a hodgepodge of a group: diverse
in many ways, quite similar in many others. An overwhelming number of us
grew up in abusive households. Some grew up in San Francisco; others
hopped a bus there when there were no other options, hoping the city would
provide them with an opportunity to craft a better life. The population of
queer-identied youth was notable, several having run from conservative
hometowns and intolerant families.
Almost all of the youth at the shelter had been failed by the individuals
and systems charged to protect and nurture them. Collectively, we were
failed by abusive households and overwhelmed child protective services sys-
tems, failed by underfunded school districts, and failed by a harsh economy.
Having been one of those youths, failed by the policies crafted to
protect meand then, later, having been one of those studying public policy
in the hallowed halls of the Ivy Leagueone theme stands out for me in

Tanene Allison lives in New York City, where she writes and works on progressive
politics and media campaigns. Tanene earned a B.A. from San Francisco State University
before heading east to earn a Masters in Public Policy from Harvards Kennedy School of
Government. A believer that homelessness is not an unsolvable problem, Tanene has faith
that the American Dream can someday be made accessible to all.
1
444 F.3d 1118 (9th Cir. 2006).
2
42 Harv. C.R.-C.L. L. Rev. 1 (2007).
3
42 Harv. C.R.-C.L. L. Rev. 239 (2007).
254 Harvard Civil Rights-Civil Liberties Law Review [Vol. 42
the debate and reality of homelessness: the Myth of Choice. The Myth of
Choice asserts that homeless people are homeless only because they make
bad choices, and it is a myth that lies behind many awed policies. These
policies lead to an institutional failure that causes further social stigmati-
zation and criminalization of the homeless populationall of which cre-
ate the whirlpool pull that is povertys cycle.
The Myth of Choice is a response to societys cognitive dissonance
the disconnect between the success we believe is possible and the existence
of homelessness. We, as a society, want to believe ourselves to be a kind and
a just people who respect the value of fairness. We want to believe that all
we have created has been won by our hands alone, and that our society
allows for those with less than us to better themselves through hard work.
This is the premise of our country, the premise of the American Dream.
It is simply too much for us, as a society, to believe that the American
Dream might be awed, or, for some, potentially impossible to accom-
plish. The presence of homelessness in our society does not easily t with
societys belief in the American Dream. It is incomprehensible, as we go
about our daily lives, to drive casually by or step over individuals without
food or shelter. It is impossible to believe that our communities create and
allow for such disparity. And yet these incomprehensibilities are a part of
the daily experience of millions of Americans. The Myth of Choice soothes
societys cognitive dissonance.
The Myth of Choice creates a serious gap between the policies cre-
ated to deal with homelessness and the actual problem of homelessness in
terms of the factors that cause it and the needs it creates. The homeless
are viewed as bad people who have made bad choices, and who thus deserve
not assistance and support but condemnation and rebuke.
Out in society, my homelessness transformed my entire identity. As
a homeless individual I was suddenly viewed by default as representing
what is wrong in society. I had spent years working with children and youth,
but when I sat on the steps of a school near the shelter, I was instantly seen
as a threat, deserving of a call to the local police. If I sat in a park, I was
not enjoying a sunrise (or, more realistically, occupying the only place that I
could at that hour), I was a threat to public comfort.
While I was homeless, those who came to know and respect me often
had difculty believing that my homelessness was not a chosen experiment
with poverty. They thought that my being young, healthy, hard-working, and
smart must have meant that I was just experimenting with what it would
be like to be homeless, that I couldnt truly be a member of such a stigma-
tized community. Those who did not know me, but knew I was homeless,
decided that I must be bad, secretly addicted to something, or otherwise
dened as somehow different from that which was familiar to them.
Societys vision of the homeless was far from reected in the reality
of the folks I shared the street with. In the shelter, we came to understand
that if we didnt look out for each other, no one else would. We would ask
2007] Voices 255
about each others days and would tip the newcomers off to important facts,
such as that the apple juice was better than the orange, and that the un-
dercovers would attempt to bust you around the corner just for standing
there. We helped each other cope with the violence that is a near daily
reality. Slowly, and in pieces, my peers in the shelter would tell their stories.
Whose mothers had died. Whose fathers had raped them. The overwhelmed
child protective service agency and underfunded education system that had
failed them. The endless lists of towns that turned them away. Despite the
fear and the violence and exhaustion that are so common to the experience
of homelessness, some of the most compassionate people Ive ever known
were those with whom I shared the homeless shelter.
Whereas inside the homeless community we saw ourselves as unique
individuals trying to make the most out of the cards we had been dealt, soci-
ety saw us in a very different light. The homeless are viewed as an inher-
ently suspect group. This collective social stigmatization has allowed for
policies that criminalize the group as a wholeand make it even more
difcult for the homeless to achieve their dreams.
This societal disrespect has evolved into laws that criminalize the ac-
tual existence of homeless individuals, rather than focusing on their absence
of choice. In Los Angeless Skid Row, the location of one of the largest
homeless populations in the United States, there are more homeless peo-
ple than available shelter beds. Despite this situation, no consideration
was given to whether human beings had a choice to rest in public places;
homelessness was simply criminalized. In Jones v. Los Angeles,
4
the Ninth
Circuit took Los Angeless Myth of Choice to task. The Jones court rec-
ognized that for homeless individuals in Los Angeless Skid Row, mere
existence would put them at risk for ticketing, nes, and jail time.
5
They
deemed this effective criminalization of homelessness unconstitutional.
6

The court in Jones held that the law of Los Angeles County violated
the Eighth Amendments prohibition against cruel and unusual punish-
ment.
7
This punishment was perpetrated by L.A.P.D. chief William Brat-
ton, who said about homelessness: If the behavior is aberrant, in the sense
that it breaks the law, then there are city ordinances . . . . You arrest them,
prosecute them. Put them in jail. And if they do it again, you arrest them,
prosecute them, and put them in jail. Its that simple.
8

Unfortunately, its not so simple for those who are attempting to es-
cape homelessness while living through such prosecution. Jones highlights
how such poorly crafted policy responses are brought about, in large part,
by the Myth of Choicethey are laws built upon a presumption that the
homeless have choices that they simply lack. In Los Angeles, the home-


4
444 F.3d 1118 (9th Cir. 2006).
5
Id. at 1131.
6
Id. at 113037.
7
Id.
8
Id. at 1122.
256 Harvard Civil Rights-Civil Liberties Law Review [Vol. 42
less of Skid Row found resting in public were ned and incarcerated,
despite the fact that there were more of them than shelter beds, and despite
the fact that ning the homeless (who cannot pay the nes) is an unpro-
ductive use of legal resources. Jones struck down this practice, but other
laws driven by the Myth of Choice remain. In San Francisco and New
York, general assistance funds have been slashed under the much-touted
theory that those funds would inevitably be spent on drugs and booze.
Society does not consider that the same cash could be spent on laundry, bus
fare, and toiletries, all of which are difcult for the homeless to obtain.
The presumption that underlies these policies is awed; it is no easy
task to escape the cycle of criminalization and related poverty. The youth
I shared the shelter with ercely refused to believe that they would nd
themselves as homeless adults, living on some towns Skid Row. Despite
unavoidable violence and despair, the shelter I stayed in also housed some
of the most powerful optimism I have ever witnessed. My peers and I,
despite our circumstances, had big dreams and made an exhaustive attempt
to nd ways to beat the odds and turn those dreams into eventual reali-
ties. These youth were not necessarily destined to grow up into adults re-
peatedly arrested for want of shelter. They were not necessarily so des-
tined, and yet, almost all of them remain homeless as adults. Escaping
homelessness, in large part, seems to be an anomaly. The homeless youth
I knew were teetering at the edge of povertys cyclonic downward pull,
and many of them were unable to nd a way out. The Myth of Choice says,
Had these youth only applied themselves, they would no longer be on
the street. The Myth of Choice leads policymakers to believe that the
youth with whom I shared the shelter somehow made the conscious deci-
sion to call the streets their home forever.
An attempt to escape homelessness presents a complex mineeld of
challenges, making the leap to stability vastly more difcult than the Myth
of Choice would have us believe. While homeless and attempting to dress
for a job interview, I was bafed by the dilemma of how to acquire proper
shoes or clothes to wear. My interview had been arranged through a friend
of a friend, so I was already entering the job market more connected and
supported than most homeless attempting to gain employment. Still, I was
terried that my appearance would give away my homelessness. A staffer
at the shelter took me into a back room where extra used clothes were kept
in bags and tossed on the oor. We dug about the torn bags and, about an
hour later, emerged with something resembling a presentable outt. My bor-
rowed shirt and too-small shoes were not ideal; they were enough. I showed
up at my job interview early, nervous, and stify overdressed.
Society and the makers of public policy would likely applaud my te-
nacity in nding work, and potentially would highlight such an example
of how it is in fact possible for one to escape homelessness. Shortly into
my job, however, the violence at the shelter increased. I was sleeping less
2007] Voices 257
and less at night, for fear of my own safety, and it was beginning to take its
toll on me.
Every morning I attempted to pull together a decent-looking outt
and, unable to afford bus fare, walked downtown to work. While at work,
I tried to act like what I hoped others would perceive as a non-homeless
individual. I tried to stie the shaking that eventually resulted from lack of
sleep. And after a series of several particularly violent nights, I left the
shelter for fear of my own safety. I was lucky enough to have couches to
move to, but for many homeless the streets are the only option that is safer
than the shelters. Not everyone has the access to the shelter and clothing
that are prerequisites to employment and permanent housing.
The layers upon layers of complexity and challenge that one must
overcome to escape homelessness are daunting. They are daunting to the
homeless individual seeking a better life, and they are daunting to a soci-
ety that hopes to craft policies in reach for the ideal. The Myth of Choice
fails to recognize this complexity and results in policies that only exacer-
bate the problem of homelessness.
Due to the continued belief that homelessness is just the result of
bad choices, society often provides responses to punish choices where
choice is actually absent. The homeless of Los Angeless Skid Row were
not choosing to be a nuisance by falling asleep underneath the sky when
there were no available shelter beds, they were merely responding to a lack
of actual choice. Policies that punish effectively involuntary actions waste
the resources of those who hope policies lead to some societal good.
I am talking about policies that futilely punish the homeless for
things they have no control over, and effectively criminalize their existence
in the process. I understand the concern non-homeless individuals have
about aggressive panhandling, or having to steer children clear of drugged
or drunk individuals on the street. But not all homeless perpetuate these
problems, and it is unjust to punish the class for actions of individuals. In
addition, services that will address the root of these problemssuch as sup-
portive housing and mental health and recovery servicesare not imple-
mented nearly enough. As a society, our inability to believe that well-mean-
ing, hard-working individuals could still remain subjects of abject pov-
erty leads to our mischaracterization of the entire contingent of homeless
as criminal by default, just for the ways in which poverty forces them to
live their lives. It is this result of our collective cognitive dissonance that
has allowed for useless and harmful homeless policies to become the norm
in too many jurisdictions.
The primary causes of homelessness are the lack of decent-paying
jobs and affordable housing. The lack of these necessities is often corre-
lated with histories of abuse and mental health and addiction concerns.
As these are the core reasons homelessness occurs, and since no one would
choose to be homeless, solving these concerns would decrease homeless-
258 Harvard Civil Rights-Civil Liberties Law Review [Vol. 42
ness and thus decrease the potential negative effects of having the home-
less on the streets.
What homeless folks need is somewhat simple to dene. First, home-
less individuals need stable housing. In order to maintain such stable hous-
ing, the homeless need equally stable sources of income, and the skills
required to be gainfully employed. And, for those with additional hurdles
to leap before being able to manage these things, there must be serious and
intensive support services through mental health and recovery programs
that work together and that should operate in conjunction with stable and
supportive housing.
None of what Im writing is new or surprising. In fact, it is overwhelm-
ingly basic and simple. But the above needs, and the policy responses
that could be crafted to address them, are still somehow decidedly differ-
ent than the policies taken to task in Jones, and implemented to some degree
as the primary response to homelessness in cities throughout our nation.
We, as a society, have the wrong focus.
In reaching for an ideal through the creation of our policies, we
chose the wrong path. Rather than seeking to form solutions that would
lift the homeless out of their predicaments, we began to criminalize their
predicaments in a supposed attempt to solve the problem of homelessness.
This policy presupposes that the opportunities to escape from poverty are
accessible and, further, it assumes that if we punish poverty (as if poverty
itself were not punishment enough!), folks will then opt out of such de-
spair. In reality, this criminalization leaves us all wanting. It pushes the
homeless deeper into that vicious cycle of poverty by forcing them to
deal with additional nes, jail time, and the inability to focus their time and
energies on working toward more stable lives. It wastes public resources
in police time, jail beds, and court proceedings, resources which could be
focused on more promising responses to the problem of homelessness.
And it reinforces our inability to face our societys aws head on, in the
faces of the people we drive by, step over, and turn away from daily.
The cognitive dissonance society feels at the presence of homeless-
ness in the face of the American Dream must lead to some resolve. If that
resolve is to criminalize a population so that we can more easily look away,
and leave the American Dream to go further unquestioned, we do a great
disservice to ourselves as a society. Jones serves as a good rallying call
for a fresh look at the policies we implement to deal with homelessness.
Whenever a society criminalizes the mere existence of a population within
the society, serious attention must be paid as to how and why we so eas-
ily declared this population as an other. Homelessness in America chal-
lenges us to face, with vision unclouded by the Myth of Choice, our con-
cepts of national identity and our belief in equality and systems that al-
low for more promising tomorrows.